Page No.# 1/19 vs The State Of Assam And 2 Ors
2021 Latest Caselaw 773 Gua

                                                            Page No.# 1/19

GAHC010029032021




                       THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/1049/2021

         PRANAB BARMAN AND 7 ORS.
         S/O. BHADRESWAR BRAMAN, R/O. HOUSE NO.100, BIRUBARI,
         GUWAHATI, P.O. GOPINATH NAGAR, P.S. PALTAN BAZAR, DIST.
         KAMRUP (M), ASSAM, PIN-781016.

         2: AMAR DEKA
          S/O. LT. HOMESWAR DEKA
          R/O. VILL. BARPANARA
          P.O. BIHDIA
          P.S. BAIHATA CHARIALI
          DIST. KAMRUP
         ASSAM
          PIN-781381.

         3: MANTU PATHAK
          S/O. LT. PADMA PATHAK
          R/O. VILL. SRIPURDEOR
          P.O. ADALBARI
          P.S. MUSHALPUR
          DIST. BAKSA (BTR)
         ASSAM
          PIN-781372

         4: DHIREN ROY
          S/O. SRI BHAGABAN ROY
          R/O. VILL. SRIPURDEOR
          P.O. ADALBARI
          P.S. MUSHALPUR
          DIST. BAKSA (BTR)
         ASSAM
          PIN-781372.

         5: PINKU TALUKDAR
          S/O. SRI TOMIRAM TALUKDAR
                                                 Page No.# 2/19

VILL. CHUCHERI
P.O. BARNADDI
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN-781303.

6: GHANASHYAM MEDHI
 S/O. SRI JOGESWAR MEDHI
 R/O. VILL. BATSAR
 P.O. BATSAR
 P.S. BELSOR
 DIST. NALBARI
ASSAM
 PIN-781303.

7: BHOGDHAR DAS
 S/O. LT. KALIRAM DAS
VILL. CHUTAN GURI
 P.O. KUMURA GURI
 P.S. MORIGAON
 DIST. MORIGAON
ASSAM
 PIN-782105.

8: MONI DEKA
 S/O. LT. MINARAM DEKA
VILL. DA-GAON
 P.O. AHAT GURI
 P.S. DHARAMTOL
 DIST. MORIGAON
ASSAM
 PIN-782412

VERSUS

THE STATE OF ASSAM AND 2 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
ASSAM, SOCIAL WELFARE DEPTT., DISPUR, GUWAHATI-781006.

2:THE STATE LEVEL POLICE RECRUITMENT BOARD

ASSAM
REHABARI
GUWAHATI-781008.

3:THE GAUHATI UNIVERSITY
 GUWAHATI-781014
                                                Page No.# 3/19

             ASSAM

Advocate for the Petitioner   : MR. M K BORO

Advocate for the Respondent :




             Linked Case : WP(C)/1181/2021

            SAIFUL HAQUE AND 51 ORS
            S/O SANOWAR ALI
            R/O VILL. DAMPUR SAOUDOR BORI
            P.O. DAMPUR
            P.S. HAJO
            DIST. KAMRUP
            ASSAM
            PIN 781102

            2: SIBA RAM DAS

            S/O GOPAL DAS
            R/O BAMUNDI
            P.O. BAMUNDI
            P.S. SUALKUCHI
            DIST. KAMRUP
            ASSAM
            PIN 781003

             3: NAZIM ALI

            S/O LATE NAJAR ALI
            R/O VILL. CHURCHURI
            P.O. BARNADDI
            P.S. BELSOR
            DIST. NALBARI
            ASSAM
            PIN 781303

             4: SAIDUR RAHMAN

            S/O ABDUL SATTAR
            R/O VILL. GANDHIYA
            DIST. NALBARI
            ASSAM
                           Page No.# 4/19

PIN 781304

5: HARESWAR BORO

S/O KANCHA BORO
R/O VILL. NO. 1 NARUA
P.O. NARUA
P.S. MUKALMUA
DIST. NALBARI
ASSAM
PIN 781138

6: FAIJUR RAHMAN

S/O LATE USHUB ALI
R/O VILL. CHAMATA
P.O. PASCHIM CHAMATA
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN 781306

7: PRANAB BHARALI

S/O LATE RAJANI BHARALI
R/O VILL. BALOWA
P.O. BALOWA
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN 781310

8: HIRAKJYOTI DEKA

S/O BHABENDRA DEKA
R/O VILL. JAHA
P.O. PUB KALAKUCHI
P.S. MAKULMUA
DIST. NALBARI
ASSAM
PIN 781348

9: GHANASHYAM BHARALI

S/O LATE MATHUR BHARALI
R/O VILL. BALOWA
P.O. BALOWA
P.S. BELSOR
                                   Page No.# 5/19

DIST. NALBARI
ASSAM
PIN 781310

10: DIPAK DAS

S/O BHARAT DAS
R/O VILL. SOLMARA
P.O. SOLMARA
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN 781338

11: DHANJIT BARMAN

S/O CHAKRESWAR BARMAN
R/O NALBARI
P.O. NALBARI
P.S. NALBARI
DIST. NALBARI
ASSAM
PIN 781369

12: MS. JEUTI BARMAN

D/O LATE ANANTA BARMAN
R/O VILL. MOHKHALI
P.O. GOPAL THAN
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN 781334

13: UTPAL BAISHYA

S/O LATE KUSHAL CHANDRA BAISHYA
R/O VILL. JANIGOG
P.O. JANIGOG
DIST. NALBARI
ASSAM
PIN 781334

14: RAMESWAR HALOI
S/O LATE JALI RAM HALOI
S/O LATE JALI RAM HALOI
R/O VILL. HABLAKHA
P.O. KHATIKUCHI
                           Page No.# 6/19

P.S. GHOGRAPAR
DIST. NALBARI
ASSAM
PIN 781369

15: BHABIT CHANDRA DEKA

S/O LATE SAYA RAM DEKA
R/O VILL. KEHERUA
P.O. KHATIKUCHI
P.S. GHOGRAPAR
DIST. NALBARI
ASSAM
PIN 781369

16: RAJITUL HAQUE

D/O SOLEMAN ALI
R/O VILL. GANDHIYA
P.O. GANDHIYA
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN 781304

17: RINA BAISHYA

D/O LATE MANTU BAISHYA
R/O VILL. BUDRUKUCHI
P.O. BUDRUKUCHI
P.S. NALBARI
DIST. NALBARI
ASSAM
PIN 781347

18: GITUMANI SARMA

S/O BIRENDRA NATH SARMA
R/O VILL. AKHARA
P.O. SURADI
DIST. NALBARI
ASSAM
PIN 781340

19: ANIL MEDHI

S/O LATE SIRO RAM MEDHI
R/O VILL. DIGHELI
                           Page No.# 7/19

P.O. BAR DIGHELI
P.S. NALBARI
DIST. NALBARI
ASSAM
PIN 781335

20: MANAB JYOTI NATH

S/O ARUP KUMAR NATH
R/O VILL. RAMPUR
P.O. RAMPUR
DIST. NALBARI
ASSAM
PIN 781312

21: RAKIBUDDIN AHMED

S/O RUKSHAD ALI
R/O VILL. GALDIGHALA
P.O. MUKALMUA
P.S. MUKALMUA
DIST. NALBARI
ASSAM
PIN 781126

22: MS. ALAKA TAHBILDAR

D/O BHABEN TAHBILDER
R/O VILL. CHAMATA
P.O. CHAMATA
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN 781306

23: ABDUL JUBBAR

S/O EYAKUB ALI
R/O VILL. KANDHBARI
P.O. MUKALMUA
P.S. MUKALMUA
DIST. NALBARI
ASSAM
PIN 781126

24: ALTAF ALI

S/O ASAN ALI
                              Page No.# 8/19

R/O VILL. NO. 2 LOHARKATHA
P.O LOHARKATHA
P.S. MUKALMUA
DIST. NALBARI
ASSAM
PIN 781126

25: IDRIS ALI

S/O MATIUR ALI
R/O VILL. BARTALA
P.O. BARTALA
DIST. NALBARI
ASSAM
PIN 781138

26: JONALI DAS

D/O BHARAT DAS
R/O VILL. SOLMARA
P.O. SOLMARA
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN 781338

27: BINAY BAISHYA

S/O DINABANDHU BAISHYA
R/O VILL BANGAON
P.O. BANAGRAM
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN 781303

28: ARPANA TALUKDAR

D/O KAMINI TALUKDAR
R/O VILL. BARKULHATI
P.O. KALAG
P.S. NALBARI
DIST. NALBARI
ASSAM
PIN 781351

29: HASINA BEGUM
                                  Page No.# 9/19

D/O LATE ABDUL GANI
R/O VILL. BANGAON
P.O. BANAGRAM
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN 781303

30: RAJANI BAISHYA
S/O LATE AMRIT CHANDRA BAISHYA
R/O VILL. ALENGIDAL
P.O. JANIGOG
P.S. NALBARI
DIST. NALBARI
ASSAM
PIN 781334

31: RIJU MANI DEVI

D/O LATE AJIT SARMA
R/O VILL. GANDHIYA
P.O. GANDHIYA
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN 781304

32: PHANIDHAR BAISHYA

S/O MAHENDRA BAISHYA
R/O VILL. CHAMARIA SATRA
P.O. PACHIM CHAMARIA
P.S. BOKO
DIST. KAMRUP
ASSAM
PIN 781104

33: ABDUL GANI

S/O MD. HAINUL ALI
R/O VILL. CHAMATA
P.O. PASCHIM CHAMATA
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN 781306

34: MANOJ KUMAR DAS
                            Page No.# 10/19


S/O PRABIN CHANDRA DAS
R/O VILL. PUB CHECHAMUKH
P.O. PACHARIA
P.S. HAJO
DIST. KAMRUP
ASSAM
PIN 781104

35: SAHEB ULAH

S/O PAHARSA ALI
R/O VILL. SANIADI
P.O. SANIADI
P.S. HAJO
DIST. KAMRUP
ASSAM
PIN 781102

36: SHONABAR ALI

S/O KULA MIAH
R/O VILL. BHANGNAMARI
P.O. BHANGNAMARI
P.S. BHANGNAMARI
DIST. NALBARI
ASSAM
PIN 781126

37: LAKSHMAN BARMAN

S/O PARAMANANDA BARMAN
R/O VILL. BARTALA
P.O. BARTALA
P.S. MUKALMUA
DIST. NALBARI
ASSAM
PIN 781138

38: SUSILA BARO

D/O KANCHA BARO
R/O VILL. NO. 1 NARUA
P.O. NARUA
P.S. MUKALMUA
DIST. NALBARI
ASSAM
PIN 781138
                             Page No.# 11/19


39: LABO RAM BARO

S/O KANCHA BARO
R/O VILL. NO. 1 NARUA
P.O. NARUA
P.S. MUKALMUA
DIST. NALBARI
ASSAM
PIN 781138

40: ABEDULLAH ALI

S/O ABDUL MAZID
R/O VILL. MUKALMUA
P.O. MUKALMUA
P.S. MUKALMUA
DIST NALBARI
ASSAM
PIN 781126

41: NAJRUL ALI

S/O AMAN ALI
R/O VILL. NARAYANPUR
P.O. NARAYANPUR
P.S. MUKALMUA
DIST. NALBARI
ASSAM
PIN 781126

42: AMARJYOTI BARMAN

S/O GHANAKANTA BARMAN
R/O VILL. GAMARIMURI
KALOPARA
P.O. GAMARIMURI
P.S. BELSOR
DIST. NALBARI
ASSAM
PIN 781306

43: KHANJANA DEVI

D/O HARENDRA CHANDRA NATH
R/O HOUSE NO. 3
RUPNAAR
NEAR L.P. SCHOOL
                               Page No.# 12/19

GUWAHATI
DIST. KAMRUP (M)
ASSAM
PIN 781032

44: ACHYUT SWARGIARY

S/O LATE JALESWAR SWARGIARY
R/O HOUSE NO. 36
RUPNAGAR
NEAR L.P. SCHOOL
GUWAHATI
DIST. KAMRUP (M)
ASSAM
PIN 781032

45: NANDITA BAISHYA

D/O MAHESWAR BAISHYA
R/O C/O JADEB DEKA
SOUTH SARANIA
GANDHI MONDAP ROAD
GUWAHATI 781007
DIST. KAMRUP (m)

46: RITA BASUMATARY

D/O UPEN BASUMATARY
R/O H. NO. 60 DOWN TOWN
NABUDAYA PATH
P.S. DISPUR
DIST. KAMRUP (M)
ASSAM.

47: BHABANI NATH

D/O UPEN NATH
R/O DHANTOLA
P.S. NALBARI
DIST. NALBARI
ASSAM
PIN 781337

48: GITA KALITA

D/O JOGENDRA KALITA
R/O VILL. BALITARA
P.O. BALITARA
                                                Page No.# 13/19

P.S. GHOGRAPAR
DIST. NALBARI
ASSAM
PIN 781349

49: SHAMSUWARA BEGUM

D/O SAFED ALI
R/O VILL. LOHARKATHA
P.O. LOHRKATHA
P.S. MUKALMUA
DIST. NALBARI
ASSAM
PIN 781126

50: RUNU DAS

D/O LATE JOGESH DAS
R/O VILL. SONPUR WARD NO. 9
NALBARI P.O. AND P.S. NALBARI
DIST. NALBARI
ASSAM
PIN 781335

51: PRAFULLA SWARGIARY

S/O LATE THRING SWARGIARY
R/O VILL. BURINAGAR
P.O. BURINAGAR
P.S. NALBARI
DIST. NALBARI
ASSAM
PIN 781341

52: MAJNUR ALI

S/O AFAJ ALI
R/O VILL. AKANA
P.O. BARAJOL
P.S. GHOGRAPAR
DIST. NALBARI
ASSAM
PIN 781369
VERSUS

THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM
                                                                         Page No.# 14/19

             SOCIAL WELFARE DEPTT. DISPUR
             GUWAHATI 781006

            2:THE STATE LEVEL POLICE RECRUITMENT BOARD

            ASSAM
            REHABARI
            GUWAHATI 781008
            3:THE GAUHATI UNIVERSITY

            GUWAHATI 781014
            ASSAM.
            ------------

Advocate for : MR. M K BORO Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 2 ORS

BEFORE HONOURABLE MR JUSTICE SONGKHUPCHUNG SERTO

Judgment & Order (CAV) Date : 03-03-2021

Heard Mr. M. K. Boro, learned counsel appearing for the petitioners in the two writ petitions and also heard Mr. D. Nath, learned Government Advocate appearing for the State respondent Nos. 1 and 2 and Mr. P.J. Phukan, learned counsel appearing for respondent No.3.

2. These two writ petitions are filed by physically challenged persons who have applied for Grade-IV post in response to advertisement dated 30/12/2018 issued by the office of the Chairman, State Level Police Recruitment Board, Assam whose service was outsourced by the Nodal Department for conducting recruitment process for Grade-III and Grade-IV posts in various Departments of the State Government. It may be mentioned that the advertisement was issued to fill up the back log vacancies reserved for the physically challenged persons.

3. After the said advertisement was issued several physically challenged persons of the State applied for the post including the petitioners and for conducting recruitment examination, the State Level Police Recruitment Board was entrusted. After all the Page No.# 15/19

necessary formalities were completed examination was conducted by the Police Recruitment Board and in the case of Grade-IV post, the examination was conducted through Digital Viva Test and, when the interview board had completed about 5 to 6 districts there were complains about the manner in which the examination was conducted therefore, the State Level Police Recruitment Board through a press note dated 9/10/2020 kept on hold the recruitment process w.e.f.10/10/2020. Thereafter, by a Notification dated 30/1/2021 issued by the Principal Secretary to the Government of Assam, the Social Welfare Department, cancelled all the Digital Viva interview conducted by the State Level Police Recruitment Board for the 7 districts and at the same time announced that the recruitment process would be carried out by the Gauhati University by utilizing the application forms already collected by the State Level Police Recruitment Board. Being aggrieved by the said Notification and the mode of recruitment process adopted by the University, which is not done through Digital Viva/interview, the petitioners are before this Court praying for issuance of appropriate writ or order or direction directing the respondents not to cancel the Digital Viva interview already completed, and also to direct the respondents to continue the interview through Digital Viva/interview.

4. It has been painstakingly submitted by the learned counsel for the petitioner that since Digital Viva/interview method was the method adopted for conducting interview for candidates who applied for Grade-IV posts, the same should be the only method through which selection process for Grade-IV post should be continued. The second limb of the argument of the learned counsel is that Digital Viva is the only means through which a fair and impartial recruitment process can be conducted, but the process adopted by the University which is by normal viva interview it is sure to give a lot of room for manipulation leading to unfairness in the selection process. The learned counsel in elaboration of his argument submitted that 9 marks allotted for Viva Voce is a lot of marks and it is likely to give room for manipulation to the interviewer, but the same can be avoided if the Viva Voce is done through Digital mode.

5. Mr. D. Nath, learned Government Advocate, appearing for the respondents, submitted that no where in the advertisement issued by the State Level Police Recruitment Board, mention was made that the recruitment process in the Grade-IV Page No.# 16/19

would be through Digital Viva Test. But, the Digital Viva test was adopted by the Consortium outsourced by the State Level Police Recruitment Board. Now that the whole process has been cancelled, the Nodal agency and the Gauhati University who have been entrusted by the Government to conduct the examination is free to choose the method through which the recruitment process is to be conducted in the terms and conditions mentioned in the advertisement. Therefore, nothing illegal or wrong has been committed by the respondents in not conducting the recruitment process for Grade-IV post through digital mode. The learned Government Advocate further submitted that, nothing has been changed on the component wise break up of marks, the number of questions to be asked, the subject to be covered and the mark each question carries as given in the advertisement, and every steps has been taken to ensure fairness and impartiality in the recruitment process. The learned Government also submitted that before the second recruitment process started a meeting of all stake holders covering all the associations of physically challenged persons in Assam was convened on 8/2/2021, in the Chamber of the Hon'ble Minister, Social Welfare Department and, the meeting after thorough discussion took various decisions which were minuted. Among the decisions taken one of them was that, the process of recruitment should be interview based only. And it is in pursuance of that decision only the Gauhati University is conducting the recruitment process through oral interview. The learned Government Advocate also submitted that nothing was mentioned in the meeting minutes that the recruitment process of Grade-IV post should be through Digital Viva/interview.

6. The learned counsel for the petitioners thereafter, submitted that the selection procedure for Grade-IV post as per the general instruction given in the advertisement should also conform to the provisions of paragraph III, IV, VI and XI of the guidelines for conducting written examination for persons with disabilities issued vide Ministry of Social Justice, Government of India F.No.16-110/2003-DD.III dated 26/2/2013. After having submitted as such, the learned counsel referred to the provisions of the Office memorandum dated 26/2/2013 and submitted that this provisions have not been followed by the respondents. The provisions specifically referred to by the learned counsel are given here below:-

Page No.# 17/19

"III. The facility of Scribe/Reader/Lab Assistant should be allowed to any person who has disability of 40% or more if so desired by the person. IV. The candidate should have the discretion of opting for his own scribe/reader/lab assistant or request the Examination Body for the same. The examining body may also identify the scribe/reader/lab assistant to make panels at the District/Division/State level as per the requirements of the examination. In such instances the candidates should be allowed to meet the scribe a day before the examination so that the candidates get a chance to check and verify whether the scribe is suitable or not.

Vi. There should also be flexibility in accommodating any chance in scribe/reader/lab assistant in case of emergency. The candidates should also be allowed to take more than one scribe/reader for writing different papers especially the languages.

VII. Persons with disabilities should be given the option of choosing the mode for taking the examination i.e. Braille or in the computer or in large print or even by recording the answers as the examining bodies can easily make use of technology to convert question paper in large prints, e-text, or Braille and can also convert Braille text in English or regional languages. VIII. The candidates should be allowed to check the computer system one day in advance so that the problems, if any in the software/system could be rectified.

IX. The procedure for availing the facility of scribe should be simplified and the necessary details should be recorded at the time of filling up of the forms. Thereafter, the examining body should ensure availability of the question papers in the format opted by the canbdidate as well as suitable seating arrangement for giving examination.

X. The disability certificate issued by the competent medical authority at any place should be accepted across the country.

XI. The word "extra time or additional time" that is being currently used should be changed to "compensatory time" and the same should not be less than 20 minutes per hour of examination for persons who are making use of Page No.# 18/19

scribe/reader/lab assistant. All the candidates with disability not availing the facility of scribe may be allowed additional time of minimum of one hour for examination of 3 hours duration which could further be increased on case to case basis."

7. In response Mr. D. Nath submitted that those provisions referred to by the learned counsel for the petitioner are relevant guidelines for conducting written examination and not for viva voce. Therefore, the above provisions are not attracted in the case of Grade-IV post for which recruitment no written test is prescribed.

8. I have considered the submissions of the learned counsels keeping in view the facts and circumstances and contents of the relevant documents referred to.

9. It appears from the record that the Digital Viva so far conducted for recruitment to the post of Grade-IV has been cancelled but before doing that so the association representing different categories of physically challenged people in Assam were taken into confidence in the meeting held in the chamber of the Hon'ble Minister, Social Welfare Department. Besides, the cancellation was necessitated due to the hue and cry raised by the people against the manner in which the examination was conducted. As such, this Court is of the view that the examination process which has been already cancelled under such circumstances cannot be carried over that too when the recruitment process has been taken over by a different body other than the one which conducted earlier. Thus, I find no merit in the first prayer of the petitioners. Accordingly, it is rejected and dismissed.

10. On the second prayer, to hold the recruitment process through Digital Viva/interview; after careful perusal of the advertisement, I find no mention having been made about it or even indicating that the recruitment process to the post of Grade-IV post should be through that method. Therefore, there has not been any change in the rule of the game. It was adopted by the Consortium outsourced by the State Level Police Recruitment Board for their own convenience, and not as chosen or prescribed by the respondents. Therefore, the petitioners who are candidates for the Grade-IV post would not have the right to compell the respondents to continue with that method. Further, as already stated since the advertisement has already given component wise break up of marks, the number of questions and the marks each Page No.# 19/19

question carries and the subjects to be covered in the viva voce in detail there is very little room for committing mischieve by persons involved in the interview. Lastly, by accepting all the terms and conditions, and the method of examination, the petitioners had applied for the post and had entered the field therefore, they cannot now turn around and challenge any one of them or all of them at this stage. Their expressed fear of unfairness creeping in the recruitment process appears to be more of apprehension than real. Therefore, I find no merit in their contentions. Accordingly, the second limb of the argument of the petitioners also fails. In view of the conclusions the two writ petitions are dismissed.

JUDGE

Comparing Assistant